The Issue May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
Findings Of Fact Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes. Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows: 231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction. On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN). Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president. On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question: Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations? Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing." On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent part: It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law. The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible. Implementation and compliance are to be at the local level. (Emphasis supplied) Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools. Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher. In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems. According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services. The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers. In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter, Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request. On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels. On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent. TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus. On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows: We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . . Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal hearing . . . . Respondent did not deny TEA's request for formal hearing. Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes. In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1 Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District. Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.) Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll. Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO. At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO. There are no professional (certificated or licensed) teachers on TEA's Board of Directors. It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either. TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development. Mr. Daniels has a background in insurance and union organization and litigation. Ms. Heard's qualifications were never clearly revealed. It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed. Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained. It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher. Also, the cost and objectives of Worwetz's courses were not explained. However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services. Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard. TEA currently has no employees, agents, or contractors who can offer continuing teacher education. TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks. TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service. TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute. Respondent School District, as represented by Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes. Respondent School District, as represented by Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions. Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows: In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation. See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990). In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993). In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996). In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998). In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999). On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena. . . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998). [Bracketed material added for grammar and clarity.] The PERC Order gave Mr. Daniels 10 days in which to respond. TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5 DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2001.
Findings Of Fact Clarence Dixon, Respondent, holds Teacher's Certificate No. 435879, Rank III, covering the area of physical education, which expires on June 20, 1984. At all times material hereto Respondent was employed by The School Board of Broward County at its facility known as Piper High School located at 800 Northwest 44th Street, Sunrise, Broward County, Florida. In that cause of action styled School Board of Broward County v. Clarence Dixon, Division of Administrative Hearings Case No. 81-1223, the Honorable R. T. Carpenter, Hearing Officer for the Division of Administrative Hearings, entered his Recommended Order directing [sic] that the Respondent, Clarence Dixon, be discharged as a teacher by The School Board of Broward County. Before the Broward County School Board acted on the Recommended Order of the Hearing Officer, Respondent submitted his resignation, further proceedings against him were terminated and no final order was entered by the Broward County School Board regarding the charges that had been preferred against Respondent. Exhibit 2, the Recommended Order in Broward County School Board v. Clarence Dixon, was admitted into evidence over objection by Respondent, for the limited purpose of showing that the hearing was held. Respondent's stipulation of admitted facts (Finding No. 3 above) admits more than that for which Exhibit 2 was admitted into evidence. The investigation of Respondent's conduct started when Sandra J. Brown, a security officer at Piper High School, overheard some students in the hall discussing Respondent. She then called one of these girls to her office to inquire into any contacts she had with Respondent. When it became evident that Respondent's statements or conduct towards the student may have been inappropriate, the student was taken to the Assistant Principal who, after hearing the story, directed Brown to investigate. As a result of this investigation, the School Board brought charges against Respondent, and, after those charges were disposed of, the proceedings here involved were instituted. Although Respondent disputes the testimony of the three complaining witnesses, McGee, Johnson and Snelling, their testimony was credible and believable, Some testimony was presented to show that Ms. Brown was carrying out a vendetta against Respondent in conducting the investigation; that at least one of the complaining witnesses had a "bad" reputation, meaning that she "came on to men"; that Dixon had told Ms. Brown about a dream he had about her involving sex; that Respondent, like other coaches specifically, was looked up to and frequently approached by students to discuss their problems; and that these incidents had been blown out of proportion to their seriousness. Evidence of misconduct unrelated to the specific charges involving McGee, Johnson and Snelling, has been disregarded as irrelevant to the charges here under consideration. On one occasion during the 1980-1981 school year at Piper High School Respondent approached Lesia McGee, a 16-year-old sophomore, in the hall between classes and commented on the clothes she was wearing and said the next time he saw her in purple slacks he would, as she testified, "tongue me to death." By that, McGee understood that he meant to kiss her. Valynda Johnson was a junior at Piper High School during the 1980-1981 school year and she had no classes under Respondent. She and Respondent talked on campus about how she dressed and various things unrelated to school. On several occasions he sent passes to her to leave class to come talk to him. Some of these times she was excused by her teacher and the conversation did not relate to school work. On one occasion Respondent asked Johnson when she was going to let him do it to her. When she replied "What do you mean?," he responded "You know what I mean." Johnson understood him to be talking about sex. Respondent asked Johnson to meet him at the 7-11 store down the street from the school and called her at her home on one or two occasions. She never went out with Respondent and no physical contact was made between Respondent and Johnson. Respondent had a gold chain delivered to Johnson from him by one of the football players. Respondent's testimony that he found this chain under a garbage can at school and, when he held it up in class to ask whose it was, Johnson claimed it, is not believed. The Amended Administrative Complaint alleges Respondent gave a gold bracelet to Renee Snelling and this complaint was amended at the close of the hearing to change the bracelet to a chain to conform to the evidence. No evidence was submitted that Respondent gave Snelling either a chain or a bracelet. Renee Snelling was an 18-year-old student at Piper High School during the 1980-1981 school year. On one of the first occasions she talked to Respondent he told her she should be a model. Her career as a model was the dominant theme of most of their subsequent conversations. Respondent suggested she go to college and become a model. On one occasion he asked if they had sex would she tell anybody. On another occasion he told her he had a necklace for her. He never cave her the necklace but showed it to her one time when he removed it from his wallet. He called Snelling at her home on one or more occasions to ask her to go out. When Respondent returned from a trip to Moorhead College in Kentucky with some of the football players he took there in his own car to increase their interest in college, he brought back a T-shirt which he had delivered to Snelling by one of the football players. On one occasion Respondent sent a pass to Snelling but she does not recall if she left class to see him in response to the pass. The only occasion Respondent mentioned sex to Snelling was when he inquired if she would tell. The policy at Piper High School regarding passes is that they are used only with respect to school business, and rarely. If a student is in a class he cannot leave that classroom without the permission of that classroom teacher even if he receives a pass from another teacher. Respondent graduated from Pahokee High School in 1974 where he was a football star and a campus leader. With the ecouragement of his coaches, Respondent obtained a football scholarship at Bethune-Cookman College, from where he graduated in 1979. He is appreciative of the help and encouragement he received from his coaches and teachers and desires to repay that debt by helping others as he was helped. In doing this, he encourages all of the kids he talks to to go to college and get an education. When Respondent resigned from Broward County School System, he obtained a job at Pahokee High School in the Special Education Department teaching students with learning disabilities. His principal feels Respondent is doing an excellent job at Pahokee and that he is an asset to the school. During his year at Pahokee Respondent volunteered to coach and led the girls' track team to runner-up position in the state championships. He also took over the cross-country track team, which had been cancelled, and led this team to the district championship. He has continually encouraged students to continue their educations throughout high school and has gone out of his way to help them get scholarships, grants and other assistance towards this goal. Both Respondent and his wife have taken students, with parental consent, to out-of-town games, have had students over for dinner, have driven them to athletic contests, have provided transportation home from football practice which extended beyond the bus schedule, and generally have devoted considerable after-school-hours time to helping and encouraging students to attain higher standards in life.
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 30, 1974. (Hearing Officer's Exhibit 1). The hearing in this cause was scheduled by notice dated April 18, 1975. (Hearing Officer's Exhibits 2, 3). 3, The Suwannee County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation TR 4). The United Teachers of Suwannee is an organization which is seeking to represent employees of the Public Employer concerning working conditions, including wages, hours, and terms of employment. The United Teachers of Suwannee was formed through a merger of two organizations, one of which had previously entered into a collective bargaining agreement with the Public Employer prior to the adoption of the Public Employees Relations Act. There is no contractual bar to the holding of an election in this case. (Stipulation TR 7, 8). There is no bargaining history under the Public Employees Relations Act which affects this matter. (Stipulation TR 8). Requests for recognition as the exclusive representative of persons in the unit described in the Petition, and the Public Employer's response to the requests are set out in correspondence which has been received in evidence as Joint Exhibits 1, 2, 3, and 4. Petitioner clearly requested recognition. The Public Employer did not comply with requests for meetings as promptly as requested by Petitioner; however, the request for recognition was not explicitly denied. PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 5). The Public Employer contends that Petitioner is not duly registered. The PERC registration file, PERC No. 8H-OR-744-1034, was received in evidence. The Public Employer sought to present the testimony of certain PERC officials with respect to its contention; however, Petitions to Enforce Subpoenas of these individuals were denied. 9, PERC has previously determined that the Petitioner filed the requisite Showing of Interest with it's Petition. (Hearing Officer's Exhibit 4). The Public Employer sought to offer evidence that the requisite Showing of Interest had not been presented to PERC; however, no direct evidence in support of the Public Employer's position was presented. The parties agreed that the unit designation set forth in the Petition is appropriate, except that the Public Employer would exclude guidance counselors, occupational specialists, and the school psychologist from the unit. Petitioner would include these persons within the unit. The Public Employer employs five guidance counselors. One guidance counselor is employed at Branford High School, one at the Vocational/Technical School, one at the Suwannee Middle School, and two at Suwannee High School. Guidance counselors are charged generally with responsibility for counseling students and assisting them in understanding the school and it's environment, in understanding themselves in relation to others, in understanding their progress in relation to their abilities and limitations, and in understanding themselves in relation to education and vocational goals. Guidance counselors assemble and interpret information about students, encourage and participate in case conferences with parents and/or teachers, participate in school standardized testing programs, and distribute occupational and vocational material to pupils. In addition to these functions, which are generally associated with the position of guidance counselor, guidance counselors employed by the Public Employer perform additional functions which are probably unique to Suwannee County. Indeed, the functions performed by guidance counselors within Suwannee County vary from school to school and from counselor to counselor. The broad range of duties performed by a guidance counselor in Suwannee County will depend to a great extent upon the personality of the individual counselor and his or her relationship with the school principal. All guidance counselors within the Suwannee County School system have Masters Degrees. It is necessary for a guidance counselor to have a casters Degree in order to be certified as a guidance counselor. Although a good number of teachers within the school system have Masters Degrees, this is not a requirement. Guidance counselors are certified in a different category than are teachers. Guidance counselors have the same base pay as teachers. A beginning guidance counselor would receive the same pay as a beginning teacher with a Masters Degree. Guidance counselors have the same contract as instructional personnel. No guidance counselors employed by the Public Employer perform instructional duties. Guidance counselors receive mail at the schools in the same manner as instructional personnel, share the teachers' lounge, and eat lunch in the school cafeteria with instructional personnel. All guidance counselors have offices. Many teachers also have offices, but all teachers do not have offices. Teachers are scheduled for five instructional work periods per day and one planning period. Guidance counselors work six periods per day without any planning period. Teachers are generally hired on a ten-month contract basis, while guidance counselors are hired on a twelve-month basis. Students frequently relate complaints with respect to their teachers to guidance counselors. The guidance counselors who testified at the hearing each handled these complaints in a different manner. Among the actions that a guidance counselor might take upon hearing a number of complaints about a teacher are to counsel with the teacher, or to inform the principal. Guidance counselors are responsible for assigning new students to classes. In making these assignments guidance counselors will consider class sizes and the personality of the teacher and the student. Guidance counselors can make an assignment despite objections of a teacher. Guidance counselors periodically meet as a group without any teachers present. These meetings might be called guidance counselor meetings, communications meetings, or policy meetings. Guidance counselors occasionally attend meetings with the superintendent and his staff and principals. Policy matters which affect the entire school system are discussed at these meetings, and decisions are made based upon these discussions. A new diploma policy was recently adopted within the school system as a result of such meetings. Guidance counselors do not have the power to hire, fire, suspend or discipline teachers or other instructional personnel. Henry Clay Hooter is the guidance counselor at the Vocational/Technical School. In addition to the duties discussed above, Mr. Hooter serves as the school's Assistant Principal. He has served as Acting Principal on several occasions. On one occasion while serving as Assistant Principal, Mr. Hooter was placed in the position of preparing the Principal's School Budget. In the absence of the principal Mr. Hooter has been called upon to sign leaves of absence for teachers. In the absence of the Principal Mr. Hooter is generally responsible for maintaining order at his school. Because he serves as Assistant Principal, Mr. Hooter has more contact with the Principal than teachers have. Lonnie Bob Hurst is one of the guidance counselors at Suwannee High School. In addition to the general duties and responsibilities set outs above, Ms. Hurst participates in preparing the master school schedule. A teacher's entire workday is set out in the master school schedule. Decisions made in preparing this schedule will determine whether a teacher will have advanced, medium, or slow courses, when the courses will be taught, when the teacher will have a free period, and when the teacher will take lunch. The master school schedule is ultimately adopted by the Principal. Both the Principal and the Assistant Principal work on the schedule along with Ms. Hurst. Ms. Hurst makes recommendations respecting courses that should be offered at Suwannee High School. Her recommendations are generally followed. The Principal at Suwannee High School frequently meets with the school's two guidance counselors and the Assistant Principal to discuss scheduling, and other policy matters. Guidance counselors at Suwannee High School play an active role in determining which courses will be offered, and which teachers will teach the courses. Oscar Munch is the guidance counselor at Branford High School. Mr. Munch acts as Assistant Principal in the absence of the Assistant Principal. Mr. Munch was previously charged with the responsibility for drafting the master schedule, but the Assistant Principal now performs this function. Ms. Virginia Alford is the guidance counselor at Suwannee Middle School. The Principal at Suwannee Middle School, Mr. John Cade, relies upon Ms. Alford to perform numerous functions beyond those generally associated with the position of guidance counselor, and the duties and responsibilities discussed generally above. Mr. Cade has delegated the responsibility for developing the master school schedule to Ms. Alford. Mr. Cade has ultimate responsibility for approving the schedule, but he generally follows the recommendations of Ms. Alford. The guidance counselor at Suwannee Middle School is responsible for assigning students to teachers. In making these assignments the guidance counselor is expected to evaluate the student and the teacher. Mr. Cade relies upon Ms. Alford in preparing his evaluations of teachers. Ms. Alford does not fill out any formal evaluation form; however, Ms. Alford's observations respecting student complaints and the teacher's utilization of student files are solicited by Mr. Cade, and are used by him in rendering evaluations of teachers. Teachers make suggestions to Mr. Cade respecting the budget. Ms. Alford actually assists Mr. Cade in preparing the budget. She attends budget meetings with him, and is expected to give advice to Mr. Cade respecting overall school needs. Mr. Cade meets very frequently, approximately two times per week with his Assistant Principal and his guidance counselor. The guidance counselor's name is on the school stationery. Mr. Cade frequently takes his guidance counselor to meetings with the Superintendent and the Superintendent's staff. Limited negotiations were conducted between the Public Employer and a labor organization which ultimately merged with the Petitioner in this case. Guidance counselors, occupational specialists, and school psychologists did not participate in these negotiations on behalf of the school board. It is now the apparent intent of the Public Employer to place such staff members as guidance counselors, occupational specialists and school psychologists on the collective bargaining negotiating team on a rotating basis. The purpose this placement would be to have the persons who will ultimately have responsibility for administering an agreement participate in the negotiations. There are two occupational specialists employed by the Public Employer. The occupational specialists are not assigned to a particular school. Occupational specialists are charged generally with placing students who are leaving the school system in positions in business and industry. The occupational specialists follow up on students after graduation. The occupational specialists answer directly to the Director of Vocational Education. They prepare their own plan of operation and have a separate budget. Occupational specialists made specific recommendations to the Superintendent regarding items in their budgets. Occupational specialists perform no instructional duties. There is no requirement that an occupational specialist have a college degree. The school psychologist is a member of the Superintendent's staff. The school psychologist answers directly to the Superintendent. He has primary responsibility for the testing and placement of students within the school district. The school psychologist plays a major role in placement of students within the school system. He has a separate office and his own secretary. The school psychologist holds a "specialist degree", which is a level above a Masters Degree. The school psychologist plays a role in formulating school policy respecting special education programs. The school psychologist has virtually total discretion in administering budgetary funds which are allocated to him. ENTERED this 25 day of November, 1975 in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
The Issue The basic issue in this case is whether the Respondent, Theresa Callahan, should be dismissed as a member of the instructional staff of the Palm Beach County School Board. Respondent's dismissal has been recommended by the Petitioner, Thomas J. Mills, Superintendent of Schools, on the basis of allegations set forth in an Amended Petition For Dismissal in which it is alleged that the Respondent was incompetent and guilty of misconduct in office, willful neglect of duty, and gross insubordination, and subject to dismissal pursuant to Section 231.36, Florida Statutes. Petitioner based these charges on allegations of the Respondent's repeated failure to perform duties prescribed by law as requested by her supervisor(s), her repeated failure to communicate and relate to her students in the classroom to such an extent that they were deprived of a minimal educational experience, her continued verbal abuse of her co-workers, her continued denial of basic rights to her ESOL students and her discriminatory application of discipline to Haitian students. Numerous sub- issues are set forth at pages 15 through 18 of the Parties' Joint Pre-hearing Stipulation.
Findings Of Fact Based on the parties' stipulations and on the credible evidence received at the hearing, the following facts are found: Stipulated facts The Respondent has been employed as a classroom teacher with the Palm Beach County School Board since August 21, 1967. Respondent received her continuing contract of employment in November 1971. The Respondent was initially employed by the District as a Television Studio Teacher from August 1967 until June 1, 1970. In October 1970, the Respondent served in the capacity of an Elementary Education Teacher with the District. She held that position until June 1973. From August 1973 through November 1976, the Respondent worked as a Resource Teacher within the School Board's Bilingual Project. In August 1976, she was assigned to Pine Grove Elementary School where she worked as a bilingual teacher until November 1978. Effective December 1, 1978, through the present, the Respondent worked as a Bilingual Education Teacher at Atlantic High School and Boca Raton High School. Respondent is currently assigned and is fully certified to teach ESOL (Bilingual Education) to students in grades seven through twelve at Atlantic High School and Boca Raton High School. Respondent's present principals, Ms. Carole J. Shetler, Atlantic High School, and Dr. Norman Shearin, Boca Raton High School, are both charged with assessing the performance of duties and responsibilities of all employees at their schools, including the Respondent. Respondent acknowledges the receipt in January 1986 from the principal of Atlantic High School of a mid-year evaluation of her performance as a classroom teacher identifying that she needed to improve her performance in the following areas: Planning for Instruction; Communication, Verbal and Non-Verbal; Effective Working Relationship with Associates; Accepts Constructive Suggestions; and Submits Reports on Time. However, Respondent disagreed with the content of that evaluation. Respondent also received a mid-year evaluation from the principal at Boca Raton High School in which she was rated "Very Good" in five areas, "Satisfactory" in eleven areas and "Improvement Needed" in only one area which pertained solely to submitting timely reports. In the Respondent's annual evaluation for the 1985-1986 school year, the principal at Atlantic High School noted that she needed to improve her performance in the areas of: Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; and Effective Working Relationship with Associates. The areas titled "Planning for Instruction" and "Accepts Constructive Suggestions" had gone from improvement needed in the 1986 mid-year evaluation to unsatisfactory in the 1986 annual evaluation. Respondent acknowledged agreement with the content of that evaluation. In February 1987, the Respondent received another mid-year evaluation from the principal of Atlantic High School. The areas noted for improvement needed were: Planning for Instruction; Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Climate; Effective Working Relationship with Asso-ciates; and Organizes for Efficient Use of Resources. The area titled "Accepts Constructive Suggestions" was still noted as unsatisfactory. However, Respondent disagreed with the content of that evaluation which she so noted thereon. She also forwarded the District and the Atlantic High School Principal her letter dated March 12, 1987, stating her disagreement with the mid-year evaluation. In the recommendation section of the 1987 mid-year evaluation, the principal of Atlantic High School gave the Respondent four directives: Comply with request to take Assertive Discipline Training; Develop an Assertive Discipline Plan; Work in a positive and professional way with associates; and Complete appropriate lesson plans and utilize time for instruction. In May of 1987, the principal of Boca Raton High School, the Respondent's other work site, completed an annual evaluation of the Respondent's performance. The areas noted as improvement needed were: Planning for Instruction; and Organizes for Efficient use of Resources. The area titled "Submits Reports on time" was noted as unsatisfactory. The two areas noted as problem areas (Planning for Instruction and Organizes for Efficient use of Resources) were also addressed in the Respondent's 1987 mid- year evaluation by the principal of Atlantic High School. However, also noted in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was also rated as "Outstanding" in two areas, "Very Good" in four areas and "Satisfactory" in eight areas. The Respondent's annual evaluation from the principal of Atlantic High School reflects that the Respondent failed to improve the deficiencies noted in her 1987 mid-year evaluation. The Respondent still had seven areas which were classified as improvement needed. Those areas were: Management of Student Conduct; Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; Effective Working Relationship with Asso-ciates; Accepts Constructive Suggestions; and Organizes for Efficient Use of Resources. However, as reflected in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was rated as "Outstanding" in two areas (Adheres to Defined Duty Days and Is Punctual) and "Very Good" in four areas (Management of Student Conduct, Communication, Verbal and Non-Verbal, Effective Working Relationship With Parents, and, Accepts Constructive Suggestions). The Respondent received an overall "Satisfactory" annual evaluation in May 1988 from the principal/assistant principal at Atlantic High School, although she did receive three areas of concern titled: Management of Student Conduct; Instructional Organization and Development; and Establishes an Appropriate Classroom Climate. In May 1988, Respondent also received her annual evaluation from the principal/assistant principal at Boca Raton High School. Every area was marked as "Acceptable" (satisfactory) and Respondent was given two commendations ("Accepting atmosphere - students from many cultures appear relatively comfortable" and "Practical application of English to the business world and their world"). In the Respondent's January 1989 mid-year evaluation by the principal/assistant principal at both Atlantic High School and Boca Raton High School, five areas of concern were reflected. They were: Management of Student Conduct; Instructional Organization and Develop-ment; Establishes an Appropriate Classroom Climate; Demonstrates Self Control; and Demonstrates Effective Working Relationship with Co-Workers. At or about that same time, the principal of Atlantic High School also tendered Respondent with a deficiency notice dated January 24, 1989, stating that Respondent failed to use her assertive discipline plan, delayed her lesson a significant part of the class period, failed to use appropriate language when she communicated with her students and her Aide, and refused to help a student who said they did not understand. About that same time, Respondent was also placed on a Professional Development Plan ("PDP") by both school administrations with respect to each identified area of concern, instructed to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. Respondent disagreed with the content of the Boca Raton High School evaluations/PDP but nonetheless did comply with and satisfactorily complete the specified instructional strategies set forth therein timely within the 30-day timeline schedule. The Respondent remained on both mid-year PDP's until the end of the school year. In June 1989 the principal at Atlantic High School tendered Respondent her annual evaluation also identifying the previous five areas of concern. In May 1989 the principal at Boca Raton High School tendered Respondent her annual evaluation identifying the previous five areas of concern as well as an additional one titled "Adheres to and Enforces School Policies." About the same time as tender of the respective annual evaluations, both principals again issued Respondent another PDP, each enumerating the respective annual evaluation areas of concern cited therein. Both PDP's again instructed Respondent to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. By letter dated June 8, 1989, to the District, with copies to the principal and assistant principal (her evaluator) at Boca Raton High School, Respondent stated her disagreement with the annual evaluation, acknowledged the earlier problem with the former aide, objected to the alleged deficiency in the annual evaluation on that issue since it was already identified on the mid-year evaluation, and agreed to work to improve on the areas noted in the annual PDP to demonstrate satisfactory performance. About September 1989, the Respondent attended District Level Remediation pursuant to the PDP's as directed by both schools. The workshops were scheduled for September 12, 1989, on Instructional Organization and Development and Communication Verbal and Non-Verbal; and September 13, 1989, on Management of Student Conduct and Classroom Climate. By letter dated December 6, 1989, the principal of Boca Raton High School informed the Respondent that her "performance in the classroom remains unsatisfactory" and stated the reason for the principal's decision and attached the evaluation instruments. In January 1990, the principal of Atlantic High School reviewed the Respondent's performance based on the results of her observations, the observations of Respondent in the classroom by the assistant principals, and the ESOL program coordinating teacher. The principal advised the Respondent that the five concern areas cited in her January and June 1989 evaluations were still areas of concern. The principal also informed the Respondent that two additional areas had been identified. The seven areas noted as concern on the 1990 mid-year evaluation and in the deficiency notice were: Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Cli-mate; Demonstrates Ability to Plan Effectively; Demonstrates Self Control; Demonstrates Effective Relationship with CoWorkers; and Adheres to and Enforces School Policies. Thereafter, in March 1990 Respondent was suspended and has remained suspended without pay since about mid-March 1990. The original petition and the instant Petition were later filed seeking Respondent's removal from/termination of her continuing contract teaching position with the District. During all times material, Respondent was the only teacher teaching English for Speakers of Other Languages (ESOL) at Atlantic and Boca. Facts established at the hearing The Respondent's ESOL Educational/Teaching Background Before she began teaching ESOL at Atlantic High School and Boca Raton High School about the 1978-79 school year, Respondent worked in the District's bilingual program where she wrote the grant for funding the bilingual program and trained teacher aides for that program. Respondent holds a Florida teaching certificate in ESOL, and is also certified through about 1996 in supervision, Spanish, and bilingual education. She has a Bachelor of Arts in Humanities, with a major in Spanish, a Master of Arts in Education, both from FAU, two and one-half years completed toward a 3- year Doctorate at Nova University in the field of administration and supervision, and various extension courses. She has been active in various bilingual and/or ESOL education organizations and activities (including Gulf TESOL and the ESOL Leadership Conferences) which include supervisors, coordinators, and other teachers, and her activities included providing advisory input concerning developments in bilingual/ESOL education to school districts, the Department of Education, and various universities which educate/train other such persons. At all times material, Respondent's classes were comprised of limited English proficient (LEP) students who had various English speaking, reading, and writing skill levels, which required Respondent to provide individualized and/or small group instruction and rotate between such persons and/or groups. Such "multi-level" instruction is the biggest challenge to ESOL educators. The Administrators who supervised, evaluated, or observed Respondent The ESOL Program for which Respondent was responsible was part of the English Department. The Chairperson of the English Department was Warren O'Toole. Although department chairpersons may be involved in some situations involving teachers, they are not involved with evaluation problems. Department chairpersons are not an official part of the administration, since they are members of the same bargaining unit as teachers. Department chairpersons lack the authority to conduct formal evaluations of teachers, or to recommend the termination of a teacher. Carole J. Shetler, the current principal at Atlantic High School, has been employed by the Palm Beach County School Board for sixteen years. She has served in the capacity of a classroom teacher, an assistant principal, an administrative assistant, and for the past six years as the principal of Atlantic High School. Ms. Shetler holds certificates from the State of Florida in the areas of English and Administration and Supervision. Ms. Shetler's duties require her to hire and evaluate personnel, manage the budget of the school, supervise student discipline and to supervise the instructional program at Atlantic High School. Since Ms. Shetler first became aware of the Respondent's teaching, in 1984, five administrators at Atlantic High School, including herself, have participated extensively in the Respondent's evaluation process. They were Ms. Shetler, Mr. Perlman, Mr. Williams, Ms. Dawson, and Ms. Thurber. Ms. Shetler observed the Respondent directly in the classroom and she also reviewed observations conducted by her assistant principals and district personnel who were called in to observe the Respondent. Dr. Clara DeFrank was the principal of Boca Raton High School from the 1986-87 school year through the end of the 1988-89 school year. Prior to the 1986-87 school year she worked as a principal at Boca Raton Middle School, an assistant principal, the director of guidance, and as a counselor. Dr. DeFrank was employed by the Palm Beach County School Board for 27 years. Dr. DeFrank has doctorate degrees in Education and Administration and Supervision. She also has a Masters Degree in Guidance Counseling and a Bachelor's Degree in Journalism. Dr. DeFrank is certified by the State of Florida in the areas of: (1) Administration & Supervision; (2) English; (3) Journalism; (4) Speech; (5) Social Studies; and (6) Guidance and Counseling. When Dr. DeFrank was assigned as the Principal of Boca Raton High School her duties required her to supervise the entire staff. Her supervisory responsibilities included the hiring of staff, the giving of assistance and recommending termination of staff when necessary. Dr. DeFrank has known the Respondent since the early 1970's. Dr. DeFrank and the Respondent have been able to communicate on an informal basis. For all three years that Dr. DeFrank was assigned to Boca Raton High School, Dr. Robert Murley, an assistant principal, evaluated the Respondent. Dr. Murley has a B.A. Degree in English, a Masters of Education Degree in Personnel and Organizational Behavior, and a Doctorate in Administration of Higher Education and Organizational Behavior. Dr. Murley is certified by the State of Florida in English, as an Assistant Principal, and as a Supervisor. Dr. Murley monitors and assists all of the beginning teachers at Boca Raton High School. Dr. Norman Shearin, the current Principal at Boca Raton High School, has been employed by the Palm Beach County School Board for 24 years. He has served in the capacity of a classroom teacher, department chairman, activities director, athletic coach, dean, assistant principal, and for approximately ten years as a principal. Dr. Shearin has been assigned as Boca Raton High School's Principal since July 1, 1989. Dr. Shearin has a Bachelor Degree in Mathematics and Social Studies, a Masters Degree in Educational Administration and Supervision and a Doctorate Degree in Educational Leadership and Behavioral Research. Dr. Shearin currently holds a Graduate Certificate from the State of Florida which certifies him in Educational Leadership, Mathematics and several other subjects. In addition to Dr. Shearin's employment with the Palm Beach County School Board, he has also served as an Adjunct Professor for Florida Atlantic University and Nova University. Dr. Shearin presently serves as the Senior Faculty Member for the Educational Staff at Nova University. Respondent's evaluator at Atlantic High School for the 1987-88 school year was James O. Williams. He currently holds a teaching certificate and a certificate in Administration and Supervision. Mr. Williams has been employed by the Palm Beach County School System for 25 years. Respondent's evaluator for the 1988-89 school year at Atlantic High School was Ms. Betty Dawson. Ms. Dawson has served in the position of assistant principal for seven years. Ms. Dawson is certified by the State of Florida in the areas of English and Administration and Supervision. Respondent's evaluator for the 1989-90 school year at Atlantic High School was Ms. Jean Thurber. Ms. Thurber has been employed as a teacher and as an assistant principal during her fifteen years of employment with the School Board. Ms. Thurber has a Bachelor's Degree in Art Education and English, and a Master's Degree in Administration and Supervision. Ms. Thurber is certified as an administrator. Ms. Diane Larange observed the Respondent on September 11, 1989. Ms. Larange has served as the ESOL Program Coordinating Teacher for nine of the twenty years she has worked for the School Board. Ms. Larange is an expert in bilingual education. She has a Master's Degree in Bilingual Education and a Bachelor's Degree in French with a Minor in Spanish and Foreign Language Education. Periodic Observations/Evaluations/PDP's 1/ Teachers are notified in the pre-school week of the evaluation forms which will be used and the basis upon which the teacher will be evaluated. Boca Raton High School also utilizes a mid-year evaluation, in addition to the final evaluation, to assist teachers by pointing out deficiencies prior to the end of the school year. Teachers are notified of the approximate date when the formal observation will take place. The periodic evaluations issued before the 1987-88 school year at Atlantic High School and Boca Raton High School did not reflect an overall satisfactory or unsatisfactory rating but did provide for the teacher to state agreement or disagreement with the content. The mid-year evaluation and the annual evaluation of Respondent's performance at Atlantic High School during the 1985-86 school year reflected the school administrators' concern about their perception of Respondent's interaction with Lloyd Taylor, her ESOL Aide. Respondent was given a letter of expectation by Ms. Shetler, dated October 7, 1986. The purpose of the letter was to set expectations for the new school year so that the problems noted in the prior school year could be avoided. Ms. Shetler was willing to assist Respondent with her noted problems. On February 17, 1987, Ms. Shetler had a conference with Respondent to review progress since the October 7, 1986, Letter of Expectation. During this conference, Respondent interrupted Ms. Shetler and stated that she wished Ms. Shetler "would stop talking about it because it was going in one ear and out the other." Ms. Shetler confirmed the discussion in a letter dated February 24, 1987. During the conference of February 17, 1987, and after the conclusion of the conference, Ms. Shetler felt that Respondent's performance, from the start of the year through their conference, had not improved. Ms. Shetler also believed that the Respondent was unwilling to cooperate with attempts to remediate her performance and behavior. When Ms. Shetler gave the Respondent the evaluation for the 1986-87 school year, she had another conference with the Respondent to discuss the areas that were noted as improvement needed. The specific problems discussed were: (1) The Respondent's waste of classroom time; (2) Respondent's negative classroom climate; (3) Respondent's failure to use the positive aspects of the assertive discipline training which she had been given; (4) Respondent's working relationship with professional staff and (5) Preparing lesson plans. After the evaluation format change in the 1987-88 school year, Respondent's May 1988 annual evaluation by assistant principal James Williams and principal Carole Shetler was overall "satisfactory" (like her May 1988 Boca evaluation), and Respondent received a commendation expressing her willinginess to accept suggestions and grow professionally. It has not been alleged and there is no record evidence that Respondent's performance at Boca before the 1988-89 school year was deemed anything but satisfactory. In the 1987-88 school year, Respondent was evaluated at Boca Raton High School by assistant principal Robert Murley and principal Clara DeFrank when she was rated fully "satisfactory" and awarded two commendations. Respondent's 1988-89 evaluator was assistant principal Betty Dawson who prepared the overall unsatisfactory January 1989 and June 1989 evaluations along with principal Carole Shetler. On October 10, 1988, Ms. Dawson had one of her many conferences with Respondent. Present during the conference were Ms. Shelter, the Respondent, and Ms. Kennedy, the Respondent's Classroom Teachers Association Representative. During the conference, Respondent agreed to use a letter grading system, to make her daily objectives for the students clearer, and to note the objectives on the board. While the meeting was being conducted, the Respondent spoke to her evaluator, Mrs. Dawson, in a manner which indicated that she was upset. On January 11, 1989, Atlantic High School completed a mid-year evaluation of Respondent's performance. The Respondent received five (5) areas of concern on this mid-year evaluation. Attached to Respondent's mid-year evaluation were: (1) October 21, 1988, observation notes, (2) Respondent's November 28, 1988, summative observation instrument, and (3) Summary of the conference which Ms. Dawson had with Respondent on December 1, 1988, which directed Respondent to "work on beginning class on time and handling material." With respect to her January 1989 mid-year evaluation at Atlantic High School, Respondent expressly noted thereon that it was a review of previously discussed ideas and that she disagreed with some of it. She was then placed on her first PDP with a 30-day timeline to complete the remediation prescribed. The numerical concerns on the mid-year evaluation correlate with the "criterion" numbers/areas of concern cited on the PDP. The Respondent's first PDP at Atlantic High School directed the Respondent to: (1) Read Domains 2, 3, and 5, in Domains of the Florida Performance Measurement System; (2) Visit with Ms. Tarkinson's and Ms. Fail's class; (3) "Demonstrate professionalism at all times;" and (4) "Make a sincere positive effort in working toward positive relations with co-workers." Assistant Principal Robert Murley and Principal Clara DeFrank at Boca Raton High School also evaluated Respondent in the 1988-89 school year when a mid-year evaluation was also conducted. Respondent was then cited with five areas of concern (identical to the 5 cited in her Atlantic mid-year evaluation). Like Atlantic's January 1989 mid-year evaluation, since Respondent also had five areas of concern cited at Boca Raton High School, she was placed on a 30-day PDP which she timely complied with and satisfied all of the remediation strategies. Attached to the Respondent's mid-year evaluation at Boca Raton High School in January of 1989 were (1) Summative observations for October 26, 1988, and January 18, 1989; (2) A Deficiency notice dated January 23, 1989; and (3) The Respondent's Professional Development Plan. The concerns expressed in the January 1989 mid-year evaluation at Boca Raton High School were based on the administrators' belief that: (1) The Respondent behaved unprofessionally with her students; (2) The respondent behaved unprofessionally with Ms. DelBarco; The Respondent failed to start class on time; and (4) The Respondent behaved inappropriately during a parent conference. The Respondent's first PDP at Boca Raton High School directed the Respondent to: (1) Read Domains 2 and 3 in Domains of the Florida Performance Measurement System; (2) Complete "Classroom Management Professional Growth Component;" (3) Display a positive professional demeanor at all times; and Demonstrate professional relationship with noninstructional personnel. In a conference which was held on June 12, 1989, the Respondent received her annual evaluation from Atlantic High School. Attached to the Respondent's evaluation were: (1) A deficiency notice dated June 6, 1989; (2) A summary of conferences held with the Respondent from February 23, 1989, through May 11, 1989; (3) Several incident reports involving students; (4) Respondent's summative observations dated February 28, May 1, and June 5, 1989; and (5) The Respondent's up-dated Professional Development Plan which recommended "district level remediation in the Fall." The observation documents reported that during the observations the Respondent either started late or that she had "very little instruction going on." At the time of the conference, Ms. Dawson still had concerns about the Respondent's performance. Although Respondent had successfully complied with and otherwise completed the remediation set forth in her January 1989 (first Atlantic) PDP timely, within the prescribed thirty days, Respondent was nonetheless again cited in those same five areas on her June 1989 evaluation by Dawson and Shetler. The areas of concern/criteria (C-12, self control, and C-13, effective working relationships with coworkers) were cited on both the 1988-89 mid-year and annual evaluations and related PDP's solely because of the September 8, 1988, Delbarco incident even though no other comparable incidents had occurred with any aide, coworker, or administrator. With 5 areas of concern cited (rather than 4 or less), Respondent's annual evaluation was "unsatisfactory' and she was necessarily placed on her Atlantic PDP. Had the areas of "concern" C-12 and C-13 not again been cited on her evaluation, Respondent would not have been placed on her June 1989 second (1988- annual) PDP since she would have had an overall "satisfactory" evaluation. However, since she was again placed on a PDP, she was the subject of District remediation at the beginning of the 1989-90 school year, increased observations, and a mid-year evaluation. Later, in May 1989, Respondent was tendered her annual, and last Boca evaluation, which was also completed by Murley and DeFrank, again citing the same five concerns set forth in the mid-year evaluation, as well as another titled "Adheres to and Enforces School Policies." On September 11, 12, and 13, 1989, the Respondent received District level remediation at the request of both schools. The Respondent was referred for District level remediation because the Administrators at both schools felt like they had exhausted their resources with regard to the workshops, reading, and suggestions they could offer. On September 11, 1989, the Respondent was observed and counseled by Ms. Diane Larange, the ESOL Program Coordinating Teacher. At a later date, Ms. Larange sent Ms. Shetler and the Respondent a list of ESOL teachers she felt the Respondent should visit. Ms. Larange was of the opinion that the observation was overall satisfactory, although there were some minor things that could have been improved. Ms. Larange had previously observed the Respondent on several occasions in prior years and all of those observations were generally satisfactory. On September 12 and 13, 1989, the Respondent received assistance from Dr. Mary Gray, an expert in teacher education. The Respondent was assisted in the areas of: (1) Instructional organization and development; (2) Verbal and nonverbal communication; (3) Management of student conduct; and (4) Classroom climate. During the remediation sessions the Respondent was, in general, unenthusiastic. This was largely because the Respondent did not feel that the remediation offered was addressing any specific professional need relevant to her. The Respondent had requested assistance specifically addressed to the teaching of ESOL classes, which assistance was not provided. At no time prior to December 14, 1989, did Murley or any other Boca administrator or designee discuss with Respondent the results of any of the observations or summatives preceding that date in the 1989-90 school year, including her last (11-1-89) fully satisfactory observation/summative. Ultimately, about January 5, 1990, Respondent was tendered her mid- year evaluation and later a letter with attachments from Shetler dated January 8, 1990, referencing the evaluations and attachments, and advising that further assistance would not be recommended. Except as to her June 1986 annual evaluation, Respondent expressly disagreed with the material content of most of her periodic evaluations setting forth areas allegedly needing improvement, unsatisfactory areas, and/or areas, of concern, from January 1986 through January 1990. In each instance where Respondent disagreed with the material content of those evaluations before the evaluation format change in the 1987-88 school year, Respondent expressly noted her disagreement by marking the box stating "I disagree with the content of this evaluation," and on two such instances she forwarded letters expressing the substance of her disagreement. ESOL Experts and Unique Nature of ESOL Instruction ESOL is an educational program which uses the English language exclusively to teach English to speakers of other languages. ESOL teachers are not required to know the languages spoken by their students. ESOL classes should ideally be taught in a non-threatening manner using fun activities. The field of ESOL encourages the "buddy system." The buddy system pairs a beginning level ESOL student with a higher level ESOL student who speaks the same language. ESOL advocates cooperative learning, in which students help one another. Yvonne Cadiz is an expert in ESOL education such as observing, assessing, evaluating, and providing expert training and teaching, implementing the currently accepted newer ESOL teaching methodologies to ESOL teachers, in advising and assisting county school districts in implementing the service plan containing such newer methodologies and training techniques, and in advising the State Board of Education in those areas to develop rules to implement on-going changes in ESOL education. Ms. Cadiz is the past president of Gulf TESOL and a past sponsor of the ESOL Leadership Conference. The evaluation instrument and related summative used by the District to evaluate teachers is geared primarily to regular classroom teachers, not to teachers of "multi-level" ESOL instruction, which contains unique teaching methodologies. Administrators performing the observations and evaluations using those instruments generally lack the specialized ESOL background to recognize or adequately evaluate ESOL instructional skills or otherwise make effective recommendations on how to improve ESOL educational techniques. At all times material, none of the District's principals or assistant principals assigned to observe or evaluate Respondent had any of the requisite ESOL educational background or knowledge of the unique nature of ESOL education or its teaching methodologies. Accordingly, the criticisms directed to Respondent by such evaluators in their observation summatives, related documents, and periodic evaluations cannot be fully credited as valid and accurate criticisms. Such evaluators or other District administrators do not appear to have adequately observed and/or evaluated Respondent's teaching abilities or to have otherwise suggested or offered competent, adequate, suggestions for improvement or related remediation of perceived performance deficiencies. Accordingly, I credit the opinion of ESOL experts Yvonne Cadiz and Diane Larange that Respondent's classroom teaching skills were satisfactory. Respondent's treatment of work associates An ESOL Aide named Roxana DelBarco was hired for the 1987-88 school year to be an aide in the Respondent's ESOL classes at both Boca Raton High School and Atlantic High School. 2/ Ms. DelBarco apparently worked as the Respondent's ESOL aide for the entire 1987-88 school year without any significant incident. Ms. DelBarco returned in the same capacity for the 1988-89 school year. On September 8, 1988, an incident occurred in which the Respondent became annoyed or frustrated by Ms. DelBarco's inability to successfully complete an errand. In the course of sending Ms. DelBarco on the errand a second time, the Respondent raised her voice or otherwise spoke harshly to Ms. DelBarco in front of the students. The manner in which the Respondent spoke to Ms. DelBarco hurt the latter's feelings and caused her to cry. As a result of the September 8, 1988, incident, Ms. DelBarco decided she no longer wished to work with the Respondent and reported her decision to resign to the school administrators. A conference was held to try to persuade Ms. DelBarco to change her mind. During the course of the conference, the Respondent admitted she had raised her voice, apologized for doing so, and offered to talk to Ms. DelBarco about changing her decision to resign. Ms. DelBarco did not change her mind. As a result of the September 8, 1988, incident involving Ms. DelBarco, the Respondent was given written reprimands by both Atlantic High School and Boca Raton High School. Atlantic High School provided the Respondent with two recommendations: (1) Treat future aides in a "courteous and professional manner," while discussing differences of opinion in private and (2) Communicate with students in a courteous and kind manner, while refraining from "sarcasm or humiliating remarks as a means of discipline." Boca Raton High School advised the Respondent that she was to behave with staff and her students in a manner which demonstrated "positive, courteous interactions free from sarcasm, unnecessary loudness/harshness, or embarrassment in front of others." At the time of the September 8, 1988, incident, the two schools could have disciplined the Respondent by at that time placing her on a PDP, citing "criterions" 12 and 13. Both schools elected not to do so at that time. However, even though there were no similar incidents, both schools cited "criterions" 12 and 13 in the Respondent's mid-year evaluations at both schools, and placed her on PDP's. The Respondent timely and satisfactorily complied with and completed the prescribed remediation set forth in her 1988-89 mid-year PDP's (her first PDP's) without any further incidents relating to "criterions" C-12 or C-13 during the 30-day period specified in the PDP's or during the remainder of the 1988-89 school year. The foregoing notwithstanding, the Respondent's annual evaluations at the end of the 1988-89 school year cited "criterions" C-12 and C-13. As a direct result of these repeat citations, the Respondent was placed on a second PDP at both schools, even though there had been no similar incidents since the DelBarco incident. Had these two "criterions" not again been cited, the Respondent's annual evaluations at both schools would have been satisfactory. In view of the time of and the nature of the September 8, 1988, incident with Ms. DelBarco, and in view of the fact that there were no similar incidents during the remainder of the 1988-89 school year, the Respondent should have received satisfactory annual evaluations at both schools for the 1988-89 school year. 3/ At the beginning of the 1989-90 school year, an ESOL Aide named Maria Montiel was assigned to be the aide in the Respondent's ESOL classes at Atlantic High School. From the very beginning, the Respondent was apparently annoyed by the fact that Ms. Montiel seemed to be somewhat lacking in initiative, energy, and direction, even though Ms. Montiel was, generally, a sweet, warm-hearted, caring person. 4/ The Respondent went to one of the administrators, Ms. Thurber, to explain that she was having problems getting Ms. Montiel to follow instructions. Among other things, Ms. Montiel had questioned whether she was required to perform certain tasks the Respondent had asked her to do; tasks Ms. Montiel seemed to regard as work more appropriate for custodians than for teacher aides. As a result of being dissatisfied and annoyed with Ms. Montiel's performance, on a couple of occasions during the first three weeks of the 1989- school year, the Respondent spoke to Ms. Montiel in a loud voice or in a harsh tone of voice. The Respondent had good reasons for being annoyed on both occasions. After about three weeks, Ms. Montiel decided that she did not wish to work as the Respondent's aide. At Ms. Montiel's request, she was transferred to work at another school. Ms. Montiel's primary reason for not wanting to work with the Respondent was that she felt under-appreciated and under-utilized. During the 1989-90 school year, after Ms. Montiel left, Harvey Lee, Jr., was assigned to work as an aide at Atlantic High School in the Respondent's first period class and for part of the Respondent's planning period. Early in their relationship there was an incident in which the Respondent spoke harshly to Mr. Lee. Mr. Lee discussed the incident with the Respondent, the Respondent apologized to Mr. Lee, and for the remainder of that school year Mr. Lee and the Respondent had a harmonious relationship. During the 1989-90 school year on one occasion the Respondent raised her voice to a substitute teacher, Inga D'Orazio, in front of the class. The Respondent was admonishing the substitute for not following instructions the Respondent had left. 5/ Respondent's treatment of her students The Respondent appears to have a tendency to be impatient with students who are disruptive or who otherwise appear not to be trying to learn. As a result of this tendency, she probably refers more students to the office than the average teacher. 6/ But the evidence in this case does not show that the Respondent regularly engages in inappropriate or excessive disciplinary referrals. 7/ It is probable that the majority of the students the Respondent referred to the office for disciplinary reasons were of Haitian origin. 8/ It is clear that the majority of the students in the Respondent's classes were of Haitian origin. The Respondent's discipline referrals were all based on Respondent's evaluation of the conduct of each student referred. The Respondent did not discriminate on the basis of race or place of national origin in her discipline referrals. The Respondent did not prohibit her students from going to the bathroom during class. She did, however, discourage them from doing so. Her discouragement was consistent with school policy at both schools which generally discouraged teachers from issuing restroom or hall passes to students, absent an emergency. The Respondent provided reasonable assistance to her students at reasonable times and permitted her aides to do likewise. The Respondent would refuse to assist students or to answer student's questions during the course of such activities as lectures or testing. Such refusals were reasonable. At all times relevant to this case, the Respondent communicated with and related to the students in her classrooms to such an extent that the students received at least a minimum educational experience. Miscellaneous Findings The School Board of Palm Beach County, Florida, has entered into an Agreement with the Classroom Teachers Association (CTA), the representative of the teachers' bargaining unit. Said Agreement delineates terms and conditions of employment for teachers and provisions of this Agreement are applicable to Respondent's employment. Teachers at Atlantic High School are expected to have their grade book, attendance book, and lesson plans available for substitute teachers. On one or two occasions during the 1989-90 school year the Respondent may have failed to have a lesson plan available or may have had an inadequate lesson plan available for a substitute. 9/ During the 1986-87 school year, the Respondent was slow in complying with written instructions that she complete her course expectation and class rules. She did, however, ultimately comply.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the School Board of Palm Beach County issue a final order in this case dismissing all charges in the Amended Petition For Dismissal, restoring the Respondent to her position of employment on the instructional staff, and awarding the Respondent back pay from the date of her suspension without pay until the day she is restored to her position of employment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June 1991.
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2006.
The Issue The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Dawn McIntyre, from her employment as a teacher for three days without pay on charges contained in the July 11,1990, letter from the School Superintendent, Scott N. Rose. 1/ The letter charges: (1) that, on one occasion during the 1987-88 school year, the Respondent pushed a teacher aide; (2) that on May 9, 1990, the Respondent struck another teacher aide with a lamp; and (3) that the Respondent also handled two students in a rough, punitive manner during May and June, 1990. The charging letter asserts that the Respondent's alleged conduct constitutes misconduct in office.
Findings Of Fact The Respondent, Dawn McIntyre, has been a teacher at Safety Harbor Elementary School since the 1984-85 school year. Until this year, she taught pre-kindergarten emotionally handicapped children. For the 1990-91 school year, she accepted a smaller class of children with varying exceptionalities. She has an annual professional service contract, not a continuing contract. She is certified to teach early childhood, mental retardation and special learning disabilies. During the 1987-88 school year, the Respondent became involved in a confrontation with an aide at school. The seeds of this confrontation were sown when the aide and the teacher with whom she worked presented flowers to the school principal in appreciation for the efforts of the principal in saving the aide's job, which was in jeopardy of being eliminated for budgetary reasons. Shortly afterwards, in conversation in the teacher's lounge, the Respondent labeled the aide as a "[expletive deleted] brown-nose." This comment was reported to the aide by a participant in the conversation, and the aide was upset by it. She decided to confront the Respondent and explain the circumstances to demonstrate that the label was unfair. When she confronted the Respondent, the Respondent did not give her an opportunity to explain but rather pushed the aide on the shoulder with the palm of her hand and rudely insisted that the label fit. In January, 1990, the Respondent began working with a new aide. Although the new aide was unfamiliar with the work and needed some on-the-job training, the Respondent worked reasonably well with the aide until, in late April or early May, the aide volunteered to help another teacher who did not have an aide and needed assistance. The Respondent objected, taking the position that the Respondent needed all of the aide's available time to help in the Respondent's class. The Respondent told the aide that the aide's volunteering for another teacher would have to be put on her evaluation as an adverse comment. From that point forward, the Respondent began to treat the aide more and more poorly, and the Respondent's working relationship with the aide quickly deteriorated to the point that the aide felt compelled to seek the advice of her union representative on how to handle the situation. While the aide's handling of the situation may have contributed marginally to the deterioration of the working relationship between the two, the breakdown would not have happened without the Respondent's inappropriate behavior. On or about May 9, 1990, the Respondent instructed the aide to take only half of the children's hour rest period for lunch and use the rest to do paperwork in the classroom. After her lunch, the aide began to arrange a place to do the paperwork. The Respondent objected to the way the aide set a desk lamp on the table the aide was going to work at, thinking it threw too much light on where some of the children were sleeping, and she told the aide to move the lamp. When the aide did not move fast enough for the Respondent's liking, the Respondent rushed over to the table in disgust and snatched the lamp off the table before the aide could move it. In the process, she shouldered and elbowed the aide out of the way, knocking her temporarily off balance and accidentally grazing the aide's elbow with the lamp. Greatly upset by the way in which the Respondent handled the situation, together with the cumulative effect of the Respondent's prior inappropriate behavior, the aide immediately left the classroom without saying anything to the Respondent and reported the incident to the administration, in accordance with the advice of her union representative. The aide refused to continue to work with the Respondent and was reassigned. Two of the three other available aides also refused to work with the Respondent. One was the aide whom the Respondent had pushed and called a "[expletive deleted] brown-nose," and she refused to work with the Respondent partly because of the pushing incident. The other had not been involved personally in any unpleasant confrontations with the Respondent but was uncomfortable working with the Respondent in light of the incidents involving others that had been related to her. The third aide was only part-time and was too new to be thrust into the gap, in the opinion of the school principal. The principal had to go to the aides' union to force one of the other aides to work with the Respondent for the rest of the school year. As it turned out, the aide forced to work with the Respondent used sick leave so as to work with the Respondent as little as possible, and aides had to be put in the classroom on a rotating basis. On or about May 10, 1990, while in the process of escorting her class from the lunchroom back to the classroom, the Respondent walked up to one of her more difficult pupils, who had just spent most of the lunch period in "time- out," grasped him around the chin, with her thumb on one cheek and her fingers on the other cheek, applying more pressure than necessary to merely get his attention, and spoke to him sternly. This was done in the presence of the other children in the class and within sight of other children and adults in the lunchroom. On or about June 5, 1990, while again in the lunchroom, the Respondent walked up to another pupil from her class, who was sitting at the "time-out table," and reprimanded him sternly for untruthfully having told her that he had eaten his lunch. As she reprimanded the pupil, she squeezed his ear between her fingers and twisted it as part of the discipline. This, too, was done within sight of the children and adults in the lunchroom. Although perhaps technically corporal punishment in violation of School Board policy, the facts described in Findings 6 and 7, above, can be described as minor, or even marginal, violations. Neither child was injured, and neither complained to any adult that the Respondent had hurt them. (The child involved in the June 5th incident said that his ear hurt a little, but that was only when directly asked by one of the adults who witnessed the incident.) The "punishment" was so minor as to leave question whether it was punishment or just a case of overdoing an effort to get and keep the children's attention. By the time of the final hearing, all of the adult witnesses to these incidents were feuding with the Respondent in some form or fashion, and their testimony describing the incidents could have been slanted by the animosity between them and the Respondent. The Respondent has been and continues to be an effective teacher of pre-kindergarten children with learning disabilities. However, as reflected in the preceding Findings, she unfortunately has been susceptible to improper and unprofessional behavior which has hampered her working relationships with a significant number of her teaching colleagues and has created difficulties for the administration of the school. This has reduced her effectiveness as a teacher. The parties stipulated on the record of the final hearing that, if the charges are proven, a three-day suspension would be the appropriate discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order finding the Respondent guilty of misconduct in office and suspending her for three days without pay. RECOMMENDED this 17th day of December, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1990.
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
The Issue The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.
Findings Of Fact After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early- October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's penis and the little girl was not moving during the incident which she described. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be "deceptive" by the person who administered the test and the person who read the computer print-out. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were 17 students enrolled in the SMILE program, which ended at 6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment. DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2009. COPIES FURNISHED: Lester L. Hall 810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304 J. David Holder, Esquire J. David Holder, P.A. 1400 Village Square Boulevard, Suite 3-196 Tallahassee, Florida 32312 Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact: Claudio Senan, date of birth, September 18, 1967, was assigned to the Henry H. Fowler Jr. High School as an eighth grader during the 1982-83 school year. By letter dated March 16,1983, Petitioner, Claudio Senan's parent, Ms. Otero, was advised that the Petitioner was being assigned to the Jan Nann Opportunity School, North, based on a recommendation of the principal and a school screening committee of the Department of Alternative Education Placement based on the student's disruption of the educational process in the regular school program. Evidence reveals that during October through December, 1982, the Petitioner was continuously defiant which resulted in his being referred for indoor suspensions on more than three occasions. This pattern continued during the period January through March, 1983. In all of these incidents, Petitioner disrupted his school classroom activities. During early March, 1983, Petitioner was stopped by the Hialeah Police Department and assigned to truant officers. The Petitioner has received only minimal credits since his enrollment in the regular school program. As example, during the 1980-81 school year, Petitioner enrolled for 12 credits and earned 8 credits. During the 1981-82 school year, Petitioner again enrolled for 12 credits and earned 5. During the 1982-83 school year, the Petitioner earned no credits. Efforts to curb the Petitioner's disruptive activities while enrolled in the regular school program have not been successful. Further, Petitioner is not earning credits or otherwise benefiting from the education process being afforded him due to his disruptive conduct in the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, School Board of Dade County, Florida enter a Final Order assigning the Petitioner, Claudio Senan, to an alternative educational placement. RECOMMENDED this 30th day of September, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1983. COPIES FURNISHED: Ms. Maria Otero 1140 W. 29th Street, Apt. 26 Hialeah, Florida 33012 Jesse J. McCrary, Jr. , Esquire and Mark Valentine, Esquire 300 Executive Plaza, Suite 800 3050 Biscayne Blvd. Miami, Florida 33137
